April 17, 2022, will mark the 40th anniversary of the Canadian Charter of Rights and Freedoms becoming part of Canada’s Constitution. The Charter reduced the sovereignty of Parliament by giving judges far more power to strike down laws as unconstitutional.
Prior to 1982, courts could strike down federal laws for violating provincial jurisdiction, and strike down provincial laws for violating federal jurisdiction. But apart from enforcing the proper division of powers between two levels of government, court rulings that invalidated legislation were exceedingly rare. Prior to 1982, Canadians who disagreed with a law essentially had only one recourse: using the democratic process to change or repeal the law which they deemed to be bad. With the Charter, Canadians could, in addition to using the democratic process, try their luck at challenging a law in court, by arguing that the law violated one or more of the fundamental freedoms of conscience, religion, expression, association and peaceful assembly, or other Charter rights and freedoms.
It all sounds wonderful, of course. But section 1 of the Charter has proven repeatedly to be a rotting fly in the ointment of the intended civil liberties medicine. Section 1 permits politicians to trample on Canadians’ Charter rights as long as the government’s lawyers can concoct a justification which will thereafter persuade a court that the violation was “reasonable” in a free and democratic society. As the Judicial Freedom Index makes clear, some judges trust politicians and admire governments a great deal, while other judges are more sympathetic to individual freedom.
Canadians who assert their Charter rights will typically have to wait for years before a court rules on whether the government’s violation is “reasonable.” Long waits are caused primarily by Canada having too few courts and too few judges. During the years that it takes to litigate a case, governments typically continue on their merry way of violating citizens’ rights and freedoms. Armed with easy access to billions of tax dollars, governments lack the incentive to obtain rulings quickly. The shortage of judges and courtrooms further enables governments to delay a speedy resolution of Charter claims. Justice delayed is justice denied.
All constitutions claim to protect the rights and freedoms of citizens.
The 1977 Constitution of the Soviet Union is only one example. As a workers’ paradise, the Union of Soviet Socialist Republics (USSR) was so wonderful that the communists made it illegal to leave and move to another country. Article 50 guaranteed citizens “freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.” Article 51 enshrined “the right to associate in public organizations that promote their political activity and initiative and satisfaction of their various interests.”
Article 52 guaranteed “freedom of conscience, that is, the right to profess or not to profess any religion, and to conduct religious worship or atheistic propaganda.” Article 55 guaranteed the inviolability of the home: “No one may, without lawful grounds, enter a home against the will of those residing in it.” Article 56 exalted “the privacy of citizens, and of their correspondence, telephone conversations, and telegraphic communications” while article 57 declared that “citizens of the USSR have the right to protection by the courts against encroachments on their honour and reputation, life and health, and personal freedom and property.”
It all sounds wonderful, of course. But the Soviet Constitution severely limited citizens’ rights “in accordance with the aims of building communism” (Article 51).
The Constitution explained that the citizen of the classless communist society must be “moulded.” Article 39 specified: “Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state” as determined by the Communist Party of the Soviet Union (Article 6).
The utopian goal of communism and the utopian goal of a world with no Covid: both ideologies have been used to trample human rights and constitutional freedoms into the ground.
Canada’s federal and provincial politicians should be embarrassed to celebrate the 40th anniversary of the Charter on April 17. No provincial premier has actually apologized for the repeated and flagrant violations, since March of 2020, of citizens’ freedoms to move, travel, associate, assemble, worship, and exercise control of their own bodies by deciding what medical treatments they will or will not receive. Federally, Parliament’s Liberal-NDP majority imposes unscientific discrimination against the “misogynist, anti-science, racist, extremists” who have not received two Covid shots, in spite of the fact that vaccinated Canadians get the virus and spread the virus.
Our Charter at 40 has not prevented us from moving rapidly towards a tyrannical system in which Canadians are slaves of the state. More and more, Canadians are managed and controlled by politicians and bureaucrats in ways similar to how farm animals are managed and controlled by the farmer. Ultimately, Canada’s survival as a free society that respects the dignity of every human being depends not on the Charter or on how courts interpret it, but on the extent to which Canadians truly cherish our freedoms, and are willing to suffer and sacrifice for them.
The charter that defends rights, but also tells government how to quash them
Not everyone is inclined to cheer the charter as a bulwark of liberty. ‘We are less free today than 40 years ago,”’ said John Carpay, president of the JCCF Author of the article: Tristin Hopper Publishing date: Apr 15, 2022 • April 15, 2022 • 7 minute read • 91 Comments
The decision was a surprise to Canadians, where any number of similar challenges had failed.
Time after time during the COVID-19 pandemic, Canadian governments imposed extraordinary public health measures that seemed to be naked infringements on Canadians’ charter rights. Mandated church closures that violated protections on “freedom of religion.” Bans on gatherings that curbed “freedom of association.” Border and travel strictures that undermined charter guarantees on mobility rights.
But the courts didn’t care. Whenever a pandemic case hit the docket, courts “erred too far on the side of deferring to government,” Joanna Baron, the executive director of the Canadian Constitution Foundation, told the National Post.
Sunday marks the 40th anniversary of Canada repatriating its constitution, a process that included passage of the Charter of Rights and Freedoms. The charter has often been praised as one of Canada’s leading modern accomplishments and its “gift to the world.” But it’s also one of the world’s only constitutions that explicitly gives the state a roadmap on how to quash the very “fundamental freedoms” it cites. It’s why, four decades in, not everyone is inclined to cheer it as a bulwark of liberty.
“I cannot think of any freedom … that the charter has brought to us,” said John Carpay, president of the Justice Centre for Constitutional Freedoms, a group that has been particularly active in challenging pandemic mandates and defending the organizers of Freedom Convoy. “We are less free today than 40 years ago,” he said.
If governments are looking to do an end-run around charter-enumerated rights, there are two primary sections of the document they turn to. Section 1, which is literally the first line of text in the charter, explicitly states that rights and freedoms are protected in Canada only to “reasonable limits.”
According to an official government of Canada guide to the charter, the purpose of this section is to remind Canadians that “rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.”
The notwithstanding clause allows provincial governments to knowingly pass legislation that treads on a fundamental freedom.
If such a legislative override had existed in the U.S. Constitution, many of the most iconic Supreme Court decisions of the civil rights movement might not have mattered. Brown vs. Board of Education — the 1954 decision that struck down school segregation — could simply have been ignored by states invoking the notwithstanding clause.
In Quebec, it’s how provincial governments can consistently maintain legislation that are a pretty obvious curb on fundamental freedoms. Bill 21, a provincial law passed in 2019, bars government employment to any Quebecer who wears religious garb such as turbans or hijabs. Any charter challenge against Bill 21 would likely be a slam dunk on the “freedom of religion” clause, but Quebec would simply be able to soldier on with the law by invoking the notwithstanding clause.
Don’t miss these important dates!And Remember to bring two friends with you! PENTICTONEVENTS & INITIATIVESThank you, Vlado Z. for the photos in Penticton on April 17thhttps://photos.app.goo.gl/nUtZYBWqPG8ki4vC6Planning Meeting Dates will be announced soon.Rallies at Richard Cannings’ office – Every Tuesday at noon
Meet at his office 301 Main Street (Nanaimo Square). ——————- o0o ——————- PENTICTON RALLY – EVERY SUNDAY
Miss a week and you miss a lot! – This Sunday’s speaker: To be announced in our Weekend Update edition on Friday. OTHER ATTRACTIONS Come visit our friendly volunteers at the tables. Informative handouts. Druthers and other independent journals. Check out the other cool items at our table – books, bumper stickers, key chains and… Pocket size Canadian Charter and Bill of Rights and Freedoms booklets. Fits purse or pocket, easy reference right at your fingertips! The local chapter of Action4Canada will have its own tables there for information, too. RALLY LOCATION –Meet in the parking lot at the NE corner of Main St and Warren Ave across from Tim Hortons. BRING TWO FRIENDS! Lots of extra parking at BCAA garage, the strip mall adjoining our regular parking area, Winners (across the street), or overflow mall parking opposite the Warren Avenue entrance to Cherry Lane Mall
OK FALLS – Saturday, April 23, 11:30 AM across from the Esso Station
OLIVER EVENTS- Saturday, April 23 Town Hall 12 Noon Oliver Town Hall
OSOYOOS EVENTS- Saturday, April 16 Town Hall ***NEW TIME 11 – 12 NOON KELOWNA EVENTSKelowna C.L.E.A.R. MEGA Rally @ Stuart Park at the Bear 12:00 noon- followed by a MEGA March and highway rallyBecause it ain’t over!Guest speakers:Ted Kuntz – Vaccine Choice CanadaChris Schaefer – world expert on masksDavid Lindsay – CLEAR (Common Law Education and Rights)Emcee : Jacquelyn Rose
Please share with family and friends!
Mama Bears Presents a six-part Mental Health Program to help our youth and parents navigate through the challenges of life, especially the difficulties faced over the last couple of years. Please join us for the first session hosted by Eric Kussin and Theo Fleury Founder and Celebrity Alliance Founder of the SameHere Movement. They will show us how the beauty of life is not how perfect it ‘should be’, but what can emerge after coming through a difficult time. The most unfortunate variable is when the victim is a child or teen, as it is difficult for them to understand this enough to seek help – even if they live in a loving and safe environment. Learn how to start the conversation with your child to understand how they are feeling and why, and most importantly how you can help them feel better.
Brian Peckford, last living signer of Canada’s Charter of Rights and Freedoms speaks to a Trucker Freedom Rally in Victoria. The former Premier of Newfoundland explains how the courts and control-hungry politicians have abused the Charter and departed from its intent. He knows: He was there at the creation.
Technocracy Triumphant — Manitoba Court Cancels The Charter Rights You Thought You Had
Taking the attitude “who am I to judge” is, under many circumstances, appropriate and admirable. There is one circumstance, however, when it is extremely inappropriate and reprehensible. That is when you are a justice of Her Majesty’s bench before whom one person or group has brought another person or group, complaining that the latter has injured them in violation of the law and asking you for redress of their wrongs. If you happen to be in that situation then your job – your only job – is to hear the case, weight the evidence, and issue a ruling, in short – to judge. To plead humility as an excuse for not doing so is to abandon your duty.
Earlier this year, in the late spring, Chief Justice Glenn Joyal of the Court of Queen’s Bench of Manitoba heard evidence that lawyers representing the Justice Centre for Constitutional Freedoms presented on behalf of the Gateway Bible Baptist Church in Thompson, along with six other congregations, two ministers and one other individual in two related but distinct constitutional challenges to the provincial bat flu public health orders. (1) One of these challenged the sweeping powers with insufficient accountability that had been given to the Chief Public Health Officer. The other challenged portions of the public health orders themselves on the grounds that they violated the fundamental freedoms named in the Charter of Rights and Freedoms in such a way as could not be justified by the “reasonable limitations” clause of the Charter’s Section 1. The evidence in these challenges was heard in May. After taking the summer to deliberate or take a vacation or go for the world’s record in thumb twiddling or whatever, last week on the twenty-first of October Chief Justice Joyal finally ruled in these cases. For the purposes of distinction the ruling with regards to the constitutionality of the powers of the Chief Public Health Officer will be called “the first ruling” and the ruling with regards to the constitutionality of portions of the orders will be called “the second ruling”.
The Chief Justice ruled against the applicants in both cases. In one sense, however, the second ruling could be called a non-ruling. In paragraph 292 we find the following:
I say that while recognizing and underscoring that fundamental freedoms do not and ought not to be seen to suddenly disappear in a pandemic and that courts have a specific responsibility to affirm that most obvious of propositions.
This is very good and right. The problem is that the next sentence begins with a “but.” Apart from the bad grammar involved – Chief Justice Joyal is old enough to have still had the rule never to begin a sentence with a conjunction like “but” drilled into him in grade school – buts have this nasty habit of leading into material that completely negates everything that precedes the “but”. Here is what followed:
But just as I recognize that special responsibility of the courts, given the evidence adduced by Manitoba (which I accept as credible and sound), so too must I recognize that the factual underpinnings for managing a pandemic are rooted in mostly scientific and medical matters. Those are matters that fall outside the expertise of courts. Although courts are frequently asked to adjudicate disputes involving aspects of medicine and science, humility and the reliance on credible experts are in such cases, usually required. In other words, where a sufficient evidentiary foundation has been provided in a case like the present, the determination of whether any limits on rights are constitutionally defensible is a determination that should be guided not only by the rigours of the existing legal tests, but as well, by a requisite judicial humility that comes from acknowledging that courts do not have the specialized expertise to casually second guess the decisions of public health officials, which decisions are otherwise supported in the evidence.
This constitutes an abdication of the very responsibility he had just acknowledged. If fundamental freedoms still exist in a pandemic, and it is the court’s special responsibility to affirm this, this means that the court cannot defer to the public health authorities, the medical experts, on the question of whether their own measures are reasonable and justified. If civil authority A is accused of trampling on the public’s fundamental freedoms, and the court defers to the expertise of civil authority A on the question of whether the latter’s actions are reasonable and justified, this translates into “civil authority A can do whatever he sees fit, there are no limits on his powers to which the court will hold him accountable”. Indeed, saying that courts should be guided not just by the “rigours of the existing legal tests” but a “humility” that forbids them to “casually second guess” the decisions of public health officials is tantamount to saying that medical science is a higher authority than the law. (2)
In the sections of the ruling that immediately follow the paragraph from which we have quoted, we see what this “judicial humility” looks like in practice. In these pages Chief Justice Joyal considers the question of whether the public health orders meet the standards of the Oakes test. The Oakes test was established by the Supreme Court of Canada in 1986 to determine whether legislation or other government action that infringes upon Charter rights and freedoms is nevertheless permitted under the “reasonable limitations” clause. To pass, the infringement must first be shown to serve a “pressing and substantial objective”. Second, the infringement must be show to be proportional, which means that it must a) be shown to be rationally connected to the objective, b) be shown to only minimally impair the right(s) and/or freedom(s) in question and c) be shown to provide a benefit to the public that is greater than the harm done by impairing the right(s) and/or freedom(s). (3) For each of the stages of this test, the Chief Justice essentially takes the position that because Brent Roussin decided, after weighing all the information available to him, that each public health order he issued was what was necessary at the time, therefore the orders meet the standards of the test. Such a ruling in effect declares that Brent Roussin, as Chief Public Health Officer, is above the law insofar as he is acting in the capacity of his office. If the court defers to him as to whether his actions in the capacity of his office meet the standards of constitutionality set in the Oakes test or not, then he is above the Oakes test and the Charter and cannot be held accountable to either.
The ramifications of this extend far beyond the issues pertaining to the public health orders and the pandemic. What it means is that while we remain in form the country that we were, governed by a parliament under the reign of a constitutional monarch, in which Common Law and Charter nominally protect our rights and freedoms, in actual practice we have become a medical technocracy.
Anyone inclined to think that this is a good thing, or even a tolerable thing, is invited to consider the words of C. S. Lewis:
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. (God in the Dock, 1948)
This description fits the rule of medical technocrats to a tee.
That a de facto medical technocracy is inimical to the freedom that permeates our parliamentary form of government, our constitutional monarchy, and the Common Law is the real issue at the heart of the other challenge. This was the challenge to the constitutionality of the provincial legislature’s having named Brent Roussin dictator, with Jazz Atwal as his Master of Horse, for the duration of the pandemic, which had to be framed, of course, as a challenge to the sections of the Manitoba Public Health Act (2009) which provided for this situation. These are sections 13 and 67. Section 67 empowers the Chief Public Health Officer to take special measures if he “reasonably believes” that “a serious and immediate threat to public health exists because of an epidemic or threatened epidemic of a communicable disease” which “cannot be prevented, reduced or eliminated” without the special measures. Section 13 allows him to delegate his own power under the Act to a deputy.
Chief Justice Joyal ruled that this two-fold delegation of power, first from the legislature to the Chief Public Health Officer, second from the latter to his deputy was constitutional. In the course of explaining his decision he made a number of statements that suggest a troubling sympathy with the technocratic impulse of the age. He gave his approval to the province’s claim that with the “emergence of new threats such as SARS, West Nile, monkey pox and the avian flu” it was important that the government focus on the “modernization of the PHA”. The modernization of the Public Health Act, that is to say, bringing it in line with contemporary trends around the world, means making it more technocratic. In this context the Chief Justice asserted with regards to the centralization of the public health system in the person of the Chief Public Health Officer that:
the act sets out the powers afforded to public health officials to address communicable diseases and importantly, it also constrains those powers so as to ensure an appropriate balance between individual rights and the protection of public health (first ruling, 12).
Does it ensure such an appropriate balance? As this is the quod erat demonstrandum, this forthright assertion of it would seem to be a classic example of petitio principia, especially when we consider the weakness of everything that was then put forward in support of the assertion. After providing quotations from speeches in the legislative assembly at the time the new Public Health Act was being debated that show that the legislators acknowledged the need for such a balance, the Chief Justice finally specified the constraints this Act supposedly places on the powers it gives to the Chief Public Health Officer (first ruling, 17). Not a single one of these is a real check that prevents the office of the Chief Public Health Officer from being corrupted into a medical technocratic tyranny by the excessive emergency power vested in it.
The first of these is that the official must believe there is a public health emergency that requires special measures to be taken. The third is that the orders require the prior approval of the Minister of Health. The fourth is the stipulation in section 3 of the Public Health Act that the restrictions on rights and freedoms of the special measures be as few as possible, the equivalent to the “minimal impairment” requirement of the Oakes test. In practice, the attitude of deferral to the specialized medical expertise of the Chief Public Health Officer on the part of the Minister of Health ensures that none of these constitutes a real constraint. The sixth, which is that the Chief Public Health Officer must be a physician, is a limit on who the Minister of Health can appoint to the office not a limit on use of the powers of that office by the officeholder. The seventh and final “constraint” pertains only to the secondary matter of the sub delegation of the Chief Public Health Officer’s powers to his deputy. This leaves the second and fifth, both of which warrant special comment and so have been reserved for last.
The second “constraint” is that under subsection 2 of section 67 “the types of orders that can be made are clearly delineated”. This is true, but the types so delineated are so extensive that this is not much of a limitation even without taking into consideration how much further deferral to the expertise of the Chief Public Health Officer would stretch them.
The fifth is the stipulation in subsection 4 of section 67 that “an order requiring a person to be immunized cannot be enforced if the person objects.” Although this looks like a real constraint on the Chief Public Health Officer’s powers, for several months now he has gotten away with making a total mockery of this stipulation by doing everything short of strapping objectors down and forcing the needle into them to compel them to be “immunized”.
Therefore, quite to the contrary of what Chief Justice Joyal claims (first ruling, 18) these constraints provide no real protection against the danger of the powers the Public Health Act confers upon the Chief Public Health Officer in a public health emergency being used to run roughshod over our rights and freedoms. Whatever the intention of the legislators in 2009, the Public Health Act fails to provide an appropriate balance between individual rights and the protection of public health. Instead, it places all the weight on the side of the latter.
It needs to be stated here that the need for an appropriate balance between individual rights and freedoms on the one hand and the public good on the other is a truism. The art of statecraft – politics in the best sense of the word – could be said to reduce to finding just this balance. The problem, at least in Canada, is that for decades now we have only ever seemed to have heard this truism trotted out whenever someone is insisting that individual rights and freedoms need to make cessions to the public good. Balance requires that there also be cessions from the public good to individual rights and freedoms. Indeed, since the vast majority of decisions that need to be made in any complex society have to do with the good of individuals and small groups, rather than the good of the society as a whole, and it is individual rights and freedoms that ensure that those making such decisions are the ones most competent to do so, which with only rare exceptions means the individuals and small groups directly concerned, balance arguably requires far more cessions to individual rights and freedoms from the public good, than the other way around.
The basic assumption of technocracy is contrary to all of this. This is the assumption that technical knowledge – the kind of specialized knowledge in any field that qualifies one as an expert – renders one competent to make decisions for other people if the expert’s field at all touches upon those decisions. This assumption is laughably false – technical expertise in one field does not translate into technical expertise in another field, much less all fields, and it is rare that a decision requires information from only one field. The most technical knowledge ought to qualify an expert for is to advise people in the making of their own decisions, not to make those decisions for them. Indeed, were we to assume that the greater an individual’s expertise is in one specialized field, the greater his ignorance will be in all others, and the more utterly incompetent he will be at making decisions for himself, let alone other people, our assumption would be wrong, but a lot less wrong than the assumption inherent in technocracy.
Technocracy is odious enough when it takes the form of the army of civil servants, passing the endless regulations that boss people around and tell them what to do in their own homes and how to run their own businesses, by which Liberal Prime Ministers have so effectively circumvented the constraints of our Crown-in-Parliament constitution in order to impose their will upon Canadians. A medical technocracy enacted in a public health emergency is far worse. Throughout history, mankind has been much more often plagued by tyranny than by insufficient government power, by too many rules than by too few, and the exploitation of emergencies, real or manufactured, and the fear they engender in the public, is the normal means whereby a tyrant seizes unconstitutional power. For this reason it is imperative than in any emergency, those empowered to deal with the emergency be subjected to even greater scrutiny and held to even stricter accountability, than in ordinary circumstances. This is the opposite of the attitude of deference that Chief Justice Joyal contended for in 281-283 of the second ruling, and which he reiterated in the first sentence of 292, “In the context of this deadly and unprecedented pandemic, I have determined that this is most certainly a case where a margin of appreciation can be afforded to those making decisions quickly and in real time for the benefit of the public good and safety.” (4)
This deference is fatal to the court’s role as the guardian of fundamental freedoms. Chief Justice Joyal acknowledged (284), as, in fact, did the province, that these freedoms were violated, and that therefore the onus is upon the government to justify the violation. (5) When the court gives this “margin of appreciation” to “those making decisions quickly and in real time”, however, is it possible for the province to fail to meet this onus in the court’s eyes?
Consider the arguments that the province made that it met the “minimal impairment” requirement of the Oakes test. Chief Justice Joyal reproduced (303) the reasons the province offered in support of this contention from paragraph 52 of their April 12, 2021 brief. Reason c) begins with “Unlike some other jurisdictions, there was no curfew imposed or a ‘shelter in place’ order that would prevent people from leaving their home other than for limited reasons”. That you cannot validly justify your own actions by pointing to the worse actions of someone else is something that anyone with even the most basic of training in logical reasoning should immediately recognize. The same reason includes the sentences “It was still possible to gather with family and friends at indoor and outdoor public places, up to the gathering limit of 5 people” and “An exception was also made for people who live on their own to allow one person to visit.” Offering these as “reasons” why the public health order forbidding people to meet with anyone other than members of their own household in their own homes for over three months only “minimally impaired” our freedoms of association and assembly is adding insult to injury. That is called throwing people crumbs, not keeping your infringement on their freedoms to a minimum. “Minimally impair” is not supposed to mean to impair the freedom to the point that it is minimal.
Reason e) which pertains to freedom of religion is no better. The province declared that there was an “attempt to accommodate religious services”. The first example of this that they gave is that “Religious services could still be delivered remotely indoors, or outdoors in vehicles”. It seems rather rich of the province to offer the latter up as proof that they tried to only minimally impair freedom of religion when, in fact, the churches that offered such services had to fight to obtain that concession.
Had Brent Roussin forgotten that he had initially banned drive-in services when he ordered churches to close in the so-called “circuit break” last fall?
Or rather had he remembered that it was Chief Justice Joyal who on the fifth of December last year had ruled that drive-in services were in violation of the public health orders before he, that is Roussin, amended the orders to allow for these services?
Either way it is rather disingenuous of him to make this allusion in this context.
The next sentence is even worse. “As well, individual prayer and reflection was permitted.” So, because he didn’t ban people from praying by themselves in the privacy of their own homes, which even officially Communist countries never attempted, he is to be credited for only “minimally impairing” our freedom of religion by forbidding us to obey God’s commandment to forsake not the assembly of ourselves, forbidding us to sing God’s praises as a community of faith, and forbidding us from partaking of the Holy Sacrament? Indeed, what this sentence tells us is that the person who wrote it thinks a) that individuals need the permission of government to pray and reflect in private, b) that it is within the powers of government to withhold such permission and forbid private prayer and reflection, and c) government’s not having done so means that their violations of our freedom of religion and worship have been minimal and reasonable.
Any sort of cognitive filter that allows a Chief Justice to look at this sort of nonsense and conclude from it that the province has met its onus of justifying its impairment of our fundamental freedoms as the minimum necessary under the circumstances is clearly a dysfunctional filter that ought to be immediately discarded.
Indeed, the province’s arguments illustrate the point made above about technocracy being inimical to freedom, constitutional government, and the balance between individual right and public good. Technical knowledge or specialized knowledge in a field of expertise, as stated above, does not translate into expertise in another field, much less expertise in all fields. Indeed, it tends towards a certain kind of deficiency in general reasoning that could be regarded as a sort of tunnel vision. It is called déformation professionelle in French and is similar to what is called the Law of the Instrument, illustrated in Abraham Maslow’s proverb about how if all you have is a hammer, everything looks like a nail. A physician’s technical expertise is in the field of medicine – treating sickness and injury and promoting health. He will therefore be inclined to subordinate everything else to the goals of his profession. In an epidemic or pandemic, this inclination will be all the more exaggerated. To a medical expert in such a situation, the answer to the question of what public health orders constitute the minimal necessary restrictions on fundamental freedoms will look very different than it does to those who do not share this narrow focus.
Consider the words that George Grant in his important discussion (Technology and Justice, 1986) of the implications of the increasing technologization of society identified as encapsulating spirit of technological thought, J. Robert Oppenheimer’s “when you see that something is technically sweet, you go ahead and do it.” The significance of these words is that the technological mind is inclined to reject external limitations, such as those of ethics, that stand between it and the actual doing of whatever it finds itself capable. Modern medical thinking is thoroughly technological and Oppenheimer’s thought, translated into that of a physician and epidemiologist overseeing a pandemic, would be “when you see that you can slow the spread of the disease by doing A, you go ahead and do A”. A might have a thousand other effects, all negative, but the mind that prioritizes slowing the spread of an epidemic over all other concerns can acknowledge this and still come to the conclusion that the benefit outweighs the harm, demonstrating that its ability to make calculations of this sort is seriously impaired. (6)
It is absolutely essential that those charged with the duty of protecting our fundamental rights and freedoms and holding government to its constitutional limits, recognize how the very nature of medical expertise tends towards the skewing of the medical expert’s perspective in this way and that therefore he is the last person to whose opinion government ministers and judges should defer in determining whether public health orders infringing upon fundamental freedoms are constitutionally justified out of necessity.
For the courts to fail to recognize this is for the courts to shirk their duty and acquiesce as our country succumbs to the tyranny of technocracy. (7)
(1) The applicants were the churches: Gateway Bible Baptist Church (Thompson), Pembina Valley Baptist Church (Winkler), Redeeming Grace Bible Church (Morden), Grace Covenant Church (Altona), Slavic Baptist Church, Christian Church of Morden, Bible Baptist Church (Brandon); ministers: Tobias Tissen (pastor of Church of God, Restoration in Sarto, just south of Steinbach) and Thomas Rempel (deacon of Redeeming Grace Bible Church); and individual: Ross MacKay.
(2) Tom Brodbeck’s editorial commenting on these rulings for the local Liberal Party propaganda rag – or paper of record, depending upon your perspective – was given the headline “Case Closed, Science Wins”.
(3) There is an unfortunate tautology here in that proportionality is the term used for both all three stages of the second step of the test taken together and the third stage of the same.
(4) The pandemic is “unprecedented” only in the sense that the measures taken to combat it have been unprecedented in their extremity. The Spanish Flu which ended about a century before the bat flu pandemic began killed between 25-50 million people. The bat flu has killed about 5 million over the course of a similar span of time. Not only is the total of the Spanish Flu much larger than that of the bat flu, it represents a much larger percentage of the world’s population which was considerably smaller at the time. It took place at a time when health care and medical treatment options were far more limited than they are today, and yet public health orders never came close to what they are today, despite the earlier pandemic having started in a time of war when people were already accustomed to emergency restrictions.
(5) Many of the news articles reporting on these rulings have been extremely misleading. Several have reported that the Chief Justice ruled that no Charter rights were violated. This is true only in the sense that there is a distinction between rights and freedoms and that the Chief Justice ruled against there having been a violation of Section 7 and Section 15 rights. With regards to Section 2 fundamental freedoms, however, he ruled – and the province admitted – that these had been violated, and that therefore there was a burden of justification on the government to prove these violations to be constitutional in accordance with Section 1. As the discussion of Section 2 was by far the most important part of the case, to summarize the entire ruling as if it were all about the Sections 7 and 15 challenges, is to utterly distort it.
(6) Suppose that a virus is spreading which, if unchecked, will cause 10 000 deaths. The public health officer, if he takes Action B, can prevent the epidemic and all of those deaths. However, Action B will itself cause 10 000 other deaths. The number of deaths will be the same whether action is taken or not. Should the public health officer take this action or do nothing? It would be odious to attempt to resolve the dilemma by comparing the value of the 10 000 lives lost the one way, with the value of the 10 000 lives lost the other. The person who makes the case for the public health officer’s taking Action B, therefore, would have to reason along the lines that since it is the public health officer’s duty to combat epidemics and save lives threatened by disease, and the intent behind Action B would be to save the 10 000 threatened by the epidemic not kill the other 10 000, Action B should be taken and the 10 000 lost to it considered collateral damage. The person who would argue the other side would point out that the 10 000 lost to the epidemic would die of natural causes, that the 10 000 lost as a result of Action B would die as the direct consequence of human action, and that the human moral culpability for taking an action that directly results in a death is greater than the human moral culpability for not taking an action that would prevent a death by natural cause, ergo it is worse to take Action B than to not do so. Which of these two arguments is the most persuasive. I would suggest that for people who are both normal and capable of rational, human, moral thought, the second of the two arguments is likely to be the most persuasive, and that those persuaded by the first of the two arguments are most likely to be found among medical experts.
(7) That technological science was leading us to a universal technocracy which would be the worst of all tyrannies was a warning sounded frequently throughout the Twentieth Century by such thinkers as Jacques Ellul (The Technological Society, 1954, Perspectives on Our Age, 1981), C. S. Lewis (The Abolition of Man, 1943, That Hideous Strength, 1945), and René Girard (I Saw Satan Fall Like Lightning, 1999). In Canada, George Grant played the role of Cassandra on this theme, which runs through his entire corpus of work from Philosophy in the Mass Age (1959) to Technology and Justice (1986). It was central to the thesis of his 1965 jeremiad Lament for a Nation that by succumbing to the technologically driven capitalism of America, Canada was losing the pre-liberal traditions that informed her founding, and would be drawn like the rest of the world into the “universal homogenous state”, a technocracy that the ancients had predicted would be the ultimate tyranny. Technological science, as he argued in the first essay of Technology and Justice, begins as man’s mastery of nature, but progresses into man’s master of himself, which translates into his mastery of other people. He did not shrink from implicating modern medicine along with other more obvious culprits in this.POSTED BY GERRY T. NEAL
I have never thought very highly of Canada’s Charter of Rights and Freedoms which was added to our constitution in 1982. Note the wording there. The Charter is not itself our constitution but merely a part of it and a late addition at that. Those who make the mistake of calling the Charter itself our constitution have bought in to the American superstition that a constitution is a piece of paper that keeps a government from going bad through its magical powers. A constitution is a country’s system of law and government, the institutions that comprise it, and the traditions that inform their motions. The largest part of it is unwritten and this is true even in the American republic. Documents like our Charter of Rights and Freedoms and the one the Americans call their Constitution are merely parts of the Canadian and American constitutions respectively. They are the laws that define and set limits to the power of government institutions. They have no power to keep government within those limits apart from the loyalty of those who hold public office in obeying them, the willingness of the courts to uphold them, and the faithful vigilance of the public.
My low estimation of the Charter of Rights and Freedoms is not because I don’t like the rights and freedoms that are listed in that document. With a few exceptions, such as the “equality rights” written in Animal Farm style doublespeak in Section 15, these are rights and freedoms that I consider to be among the most valuable elements of our Common Law tradition. It is rather because the Charter has made these rights and freedoms less secure rather than more. In part this is due to flaws in the Charter itself such as the “notwithstanding clause” in Section 33 and the broad loophole in Section 1 which effectually nullify the Charter as far as the whole point of constitutionally protected rights and freedoms, that is to say that they are supposed to limit what the government can do so as to protect us from the abusive exercise of its powers, goes. The Charter’s loopholes and exceptions protect the government instead of us and for this reason former Prime Minister Brian Mulroney was right to say that it is not worth the paper it is written on. It is also, however, because the Charter has encouraged a way of thinking about our rights and freedoms in a way that is the fundamental opposite of that which has historically belonged to our Common Law and traditional institutions of constitutional monarchy and parliament. It encourages us to think of our rights and freedoms as privileges bestowed upon us by government to be limited or taken away by government freely as it sees fit, rather than our own property.
The consequences of this way of thinking having become pervasive have been most evident over the course of the last year. Section 2 of the Charter identifies four freedoms as being fundamental. The first of these is freedom of conscience and religion. The third is the freedom of peaceful assembly. The fourth is the freedom of association. The whole point, remember, of having the Charter designate these freedoms as essential is to place limits on government power, to tell the government that it must keep its hands off of these things. Yet ever since the World Health Organization declared the spread of the Wuhan bat flu to be a pandemic last March, our provincial governments have treated these freedoms as if they were completely non-existent, much less fundamental and protected by constitutional law and the Dominion government has constantly been urging the provincial governments to clamp down on us in violation of these freedoms in even more severe ways.
In 1986 the Supreme Court of Canada ruled in the case of R v Oakes. David Oakes had been arrested with drugs in his possession and under what was then Section 8 of the Narcotics Control Act was presumed to be guilty of trafficking. He challenged the constitutionality of Section 8 on the grounds that it violated the presumption of innocence, a civil right spelled out in Section 11 (d) of the Charter and which had been long established as part of the Common Law tradition. That the provision of the NCA being challenged did indeed violate the civil right in question was easily demonstrated, but the Court then had to decide whether the violation was justifiable under the “reasonable limits” loophole in Section 1 of the Charter. The Court’s ruling established what has ever since been the litmus test for this question. The Court ruled that for a law which violates a Charter right or freedom to be justifiable under the “reasonable limits” clause, it first had to have a “pressing and substantial” goal. Second, it had to meet the three qualifications of a) being “rationally connected” to the goal of the law, b) only impairing the rights and freedoms in question minimally, and c) not overwhelming the benefit hoped to be achieved with its negative effects.
It is quite obvious that the public health measures fail to meet the second of the three qualifications of the second part of the Supreme Court’s Oakes’ test. When the public health officer tells you that you cannot have any visitors to your home, even if you meet outside, as is currently the case in Manitoba, he is clearly not trying to only “minimally impair” your freedom of association. What he is doing is disregarding freedom of association entirely. The provincial legislature is not allowed to do this constitutionally, nor can it delegate to the public health officer the authority to do so. The legislature cannot delegate what it does not legitimately possess itself. When the public health officer orders churches, synagogues, and mosques not to meet for the largest part of a year, cancels the most important festivals of these religions, and only permits re-opening at a severely reduced capacity that requires churches to betray the tenets of their own faith and turn worshippers away, he is similarly disregarding freedom of conscience and religion rather than making sure that his orders only “minimally impair” this freedom. There is also plenty of evidence that the public health orders fail to meet the third qualification of the Oakes’ test as well. The costs of lockdowns, measured in the destruction of lives due to the breakdown of mental health and the rise in substance abuse and suicides, the erosion of community and social capital, and the devastation of businesses and livelihoods, has been tremendous and far exceeds any questionable benefits of these insane, unjust, evil and oppressive restrictions. Indeed, I believe the case could be made that the public health measures fail every single element of the Oakes’ test.
The provincial governments have gotten away with all this stercus tauri because they have until fairly recently met with only minimal resistance on the part of the Canadian public. This can be attributed to a number of causes. One of these, of course, is the hysterical and irrational fear generated by the mainstream corporate media that have been deceitfully and despicably portraying a virus that produces no to mild symptoms in most people who contract it, from which the vast majority of people who actually do get sick recover, and which in many if not most jurisdictions has an average age of fatality that is higher than the average expected lifespan of the general public, as if it were the second coming of the bubonic plague. Another cause is the new attitude which has been encouraged among Canadians, especially by the Liberals, since 1982, of regarding our rights and freedoms as privileges bestowed upon us by the government in the Charter rather than what they are, our lawful property as free subjects of the Crown which it is the government’s duty to respect.
The assault on our freedoms of religion, peaceful assembly, and association have come from the provincial governments. At the same time the second of the four freedoms designated as fundamental in the Charter has come under attack from the Liberals who are in power in the Dominion government. This is the freedom of “thought, belief, opinion and expression”. Whereas our freedoms of religion, peaceful assembly, and association have never been this besieged before in Canadian history, our freedom of thought, belief, opinion and expression has taken hits every time the Liberal Party led by a Trudeau has come to power in Ottawa. It has been less than ten years since we finally got rid of one of the vilest elements of Pierre Trudeau’s legacy, the notorious Section 13 of the Canadian Human Rights Act. While the entire Canadian Human Rights Act of 1977 is, in fact, an affront to freedom of thought because, despite its title, it has nothing to do with protecting our rights either as Canadians or human beings from government abuses, but is instead all about prohibiting the crimethink of discrimination on the part of individual Canadians, Section 13 was the Act’s worst provision by far. By defining any electronic communication of information “likely to” expose someone protected against discrimination “to hatred or contempt” as an act of discrimination it in effect forbade all negative criticism of groups protected against discrimination or individuals belonging to such groups, regardless of the truthfulness or justice of the criticism in question.
Section 13 was finally abolished during the premiership of Stephen Harper thanks to a private member’s bill repealing the foul section that received enough support from Conservative MPs and Liberal MPs of the pre-Trudeau variety – these had not yet been purged from the party – to pass Parliament. Neither Stephen Harper nor his Minister of Multiculturalism, Jason Kenney, who is currently overseeing the throwing of pastors in gaol and the barricading of churches in Alberta, had much to do with this for although they had spoken out against Human Rights Tribunals and their unjust infringement upon freedom of thought and speech on their road to power, in office they betrayed most of what they had once stood for, apparently having sold their souls to get there. The demise of Section 13 has long been lamented by Pierre Trudeau’s son, Captain Airhead, and when he became Prime Minister in 2015 he dropped a number of hints that he would be seeking to revive it. The appeal of Section 13 to Captain Airhead was based on more than just the fact that it had been originally introduced when his father was in power. More than any previous Liberal leader, Captain Airhead has been of the mindset that once a progressive goal has been attained, all debate about it ought to cease. This was evident even before he became Prime Minister when he purged the party of its pro-life members. More than any previous Liberal leader, he has enthusiastically endorsed fringe progressive causes that could not possibly achieve widespread popular support on their own merits without measures that intimidate and suppress dissenters. More than any previous Liberal leader he has been prone to tell Canadians who disagree with him that they are not welcome in their own country. He has used the expression “there is no place for X in Canada” far more liberally than any previous leader and with a much wider range of Xs. (1) In all of this he has demonstrated the sort of sick, censorious, mindset to which something like Section 13 appeals. In December of 2019, after he won re-election in the sense that he managed to squeak out a plurality despite falling majorly in the polls from where he had been four years previously, he instructed his Cabinet that fighting online “hate speech” would be one of their priorities in the new session of Parliament. Heritage Minister Steven Guilbeault was specifically charged with finding a way to force social media platforms to remove what the Liberals consider to be “hate speech” within twenty-four hours of being told by the government to do so. This would be Section 13 magnified to the nth degree.
In response to this directive, Guilbeault came up with a bill that pursued the same goal as Section 13 through a different avenue. Last November he introduced Bill C-10, or “An Act to Amend the Broadcasting Act” into Parliament. This bill if passed would place internet media under the same regulatory authority of the Canadian Radio-Television and Telecommunications Commission (CRTC) as older electronic media such as radio and television broadcasters. By going this route, Guilbeault could maintain that his goal was not to censor what individual Canadians post on the internet, but to ensure that the companies that make shows and movies available through online streaming follow the same Canadian content guidelines as other broadcasters, a goal consistent with his portfolio as Heritage Minister. That having been said, the Bill as originally drafted would have given the CRTC regulatory authority over individual Canadians’ user-generated content on social media. When objections to this were raised the Bill was amended to include an exception for individual user-generated content, but this exception was removed in committee late last month around the same time that the government moved to shut down debate on a motion that the Conservatives had introduced calling for a review of whether or not the bill violated the Charter. None of this inspires much confidence in the Heritage Minister’s claim that the aim of this bill is cultural protectionism and not censorship of thought. On Monday, faced with backlash over all of this, Guilbeault promised that they would make it “crystal clear” that the user-generated content will not be subjected to the same sort of regulatory control as television programming. Needless to say, he ought not to be taken at his word on this. Indeed, Michael Geist, the law professor at the University of Ottawa who has been one of the foremost critics of Bill C-10, has already said that the amendment the Heritage Committee proposed on Thursday evening fails to follow through on Guilbeault’s promises.
It is worth observing here that with Bill C-10, Captain Airhead and Steven Guilbeault have returned to the very first thing the original Trudeau Liberals did to control the minds of Canadians and limit their freedom of thought. At the very beginning of the first Trudeau premiership the Right Honourable John G. Diefenbaker pointed out how the Liberals were threatening freedom of thought through the powers of the CRTC. In a speech entitled “The Twilight of Liberty”, the second included in the collection Those Things We Treasure (Macmillan, 1972), Diefenbaker said:
The Trudeau Government seems to be dedicated to controlling the thinking of Canadians. Through the power being exerted by Pierre Juneau, as Chairman of the Canadian Radio and Television Commission, (2) private radio and T.V. station proprietors in Canada are frightened to speak, fearful of being subject to the cancellation of their licences. One such station was CKPM in Ottawa, which dared to have an open line program critical of the Government. Pierre Juneau did come before a Committee of the House and he uttered lachrymose words in reply to the criticism leveled at him that he wishes to determine what Canadians shall hear, and to deny them the right to listen to what they will. His attitude was different when he spoke to the Association of Private Broadcasting Companies and in effect stated: “When I ope my lips, let no dog bark.” Under him the broadcasting network owned by the people of Canada is allowed to broadcast what he permits.
Diefenbaker’s warning of decades ago has gone largely unheeded, perhaps because the CRTC’s official raison d’être is cultural protectionism which appeals to a much broader range of Canadians than its more covert purpose of limiting freedom of thought. Certainly right-of-centre Canadians of the more traditional variety, such as Diefenbaker himself or this writer, would have no objections to the idea that Canadian culture ought to remain Canadian. It needs to be pointed out, however, that the CRTC has been a total failure in this regards. Fifty-three years later, the Canada of 2021 is far more Americanized culturally than the Canada of 1968 was. Indeed, much of what Canadians regard as distinctly “Canadian” culture today, is merely Hollywood culture with a maple leaf stamped on it. Read the novels of Mazo de la Roche and Robertson Davies if you want a taste of the more authentic pre-CRTC Canadian culture. Since the CRTC failed in its official appointed task, probably because its real purpose was thought control all along, there is hardly grounds here for extending its reach over the new online media. Indeed, the scarcely disguised agenda of censorship and thought control behind the move to so extend its reach, is sufficient reason why this bill, amended or otherwise, must never be allowed to pass. It is also more than sufficient reason for voting the Trudeau Liberals who dreamed it up in the first place out of Parliament and never allowing them to resume power again. For as Rex Murphy pointed out earlier this week, “What is more galling and more threatening that the bill itself, however, is the set of mind behind it”, and that won’t go away even if the bill itself does.
(1) Disturbingly, the leaders of the other parties – including the present leader of the Conservatives – have taken to aping his example in this.
(2) The full name of this agency was changed into the awkward and absurd redundancy that it is now in 1976, but the acronym remains the same. Posted by Gerry T. Neal
I have been reading the news reports of you and your Government’s latest efforts announced yesterday, April 19, 2021 concerning the Wuhan Virus. It is difficult to get any written material directly of what you said but only press reports of what you are alleged to have said. Your own website does not carry your comments, for example. And the travel section of your website on restrictions talks of regions, not health regions, although the press talk of health regions. One should not have to wait for such important issues to be clarified now thirteen months in.
Additionally, Government pronouncements on the facts have been limited. These often talk of cases as if they were all sick people, and I have not see the numbers of total acute care beds in the Province and total ICU beds. I have had to look elsewhere to find such information. What percentage of cases end up as hospitalization, what is the fatality rate for various age groups? What is the recovery rate? There seems to be no balance of all the facts but rather a concentration on the dire straits we are all in. Surely some context is necessary.
Sadly, you have followed the mantra of so many places where lockdowns have been implemented and have ignored the efforts of jurisdictions who have refrained from lockdowns or implemented mild ones.
If you had looked at this information, you would have seen that places like Florida have been successful without resorting to extreme measures as you and your Government are now implementing.
But what is most disconcerting for me are two things:
A. You and your Ministers have paid little attention, if any, to providing citizens with any type of cost benefit analysis when you announce your restrictive measures. This, in my view, is a major failing.
When the pandemic first affected this province, one perhaps could find sympathy with the view of move fast, figure out later. But not now. You have had time with your scores of advisors, experts, etc. to take a more thoughtful approach and examine the evidence. Have you, for example, read The Great Barrington Declaration of October 04, 2020? This has been authored, as of this date, by 13,985 medical and and public heath scientists and 42,520 medical practitioners. Three of the founders of this declaration are world renowned professors and researchers at Oxford, Dr. Sunetra Gupta, Stanford, Dr. Jay Bhattacharya, Harvard, Dr. Mutha Kulldorff, two Canadians, Dr. Matthew Strauss of Queen’s University and Dr. Annie Janvies, University of Montreal. Have you contacted these Canadians to get an alternative point of view?
Dr Joseph A. Ladapo, Professor of Medicine , UCLA, writing in the Wall Street Journal today, comments in his article entitled ‘An American Epidemic of Covid Mania’ :
‘Covid mania has also wreaked havoc on science and its influence on policy. While scientists’ passion for discovery and improving health has fueled research on the novel coronavirus, Covid mania has interpreted scientific advancements through an increasingly narrow frame. There has only been one question: How can scientific findings be deployed to reduce Covid-19 spread? It hasn’t mattered how impractical these measures may be. Discoveries that might have helped save lives, such as better outpatient therapies, were ignored because they didn’t fit the desired policy outcome.’
As an elected public official, I submit you have not made your case regarding the new restrictions taking into account a cost benefit analysis. At least the public has not seen any such analysis, which I think they deserve.
B. In all the statements that you, your Ministers and officials have made since the beginning, I find a blatant disregard for the provisions in the Charter of Rights and Freedoms of our Constitution. One would have thought that you would have shared with the public your appreciation for these provisions and provided what you thought was a reasoned analysis of why you believed your Government’s measures could constitutionally override these Charter provisions. To not have done so is, in my view, a dereliction of your obligation as the First Minister of this Province. Already, various Provincial orders and regulations are being questioned and overridden by the courts.
I must remind you as one who was intricately involved in the Charter that it contains the following:
2 Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Mobility of citizens
6 (1) Every citizen of Canada has the right to enter, remain in and leave Canada
Rights to move and gain livelihood (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
Life, liberty and security of person
7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Treatment or punishment
12 Everyone has the right not to be subjected to any cruel and unusual treatment or Provincially [ sic ] punishment.
I submit that you have not made the case for your Government’s orders and regulations in the context of the Charter provisions, and that such a consideration and analysis is necessary and made public, a requirement I would think, before embarking on measures which clearly breech fundamental rights and freedoms in the Charter of Rights and Freedoms which is a part of The Constitution of Canada.
No one doubts the seriousness of the situation, but in a democracy like ours one is not relieved of fundamental responsibilities when the health of all citizens and rights and freedoms of all those citizens are crucially at stake.
Hence, taxpayers and citizens, deserve a full cost benefit analysis of the measures and a full constitutional analysis. Only then can severe restrictions be soberly assessed.
The Pirates of Penzance was the fifth comic opera to come out of the collaboration of librettist Sir W. S. Gilbert and composer Sir Arthur Sullivan. It premiered in New York City – the only one of the Gilbert and Sullivan operas to open first in the United States rather than London – on New Year’s Eve in 1879, a year and a half after their fourth work, the H.M.S. Pinafore, had become a huge hit, both in London and internationally.
The hero of The Pirates of Penzance is the character Frederic, a role performed by a tenor. The opera begins with his having completed his twenty-first year – not his twenty-second birthday, for he was born on February 29th, a distinction, or rather, a “paradox, a paradox, a most ingenious paradox”, that becomes essential to the plot in an amusingly absurd way – and the titular pirates throwing him a party. He has, up to this point, served as their apprentice due to a mistake that his nurse, Ruth, made, when he was a boy (she had heard the word “pilot” as “pirate” in his father’s instructions regarding his apprenticeship). The bass-baritone Pirate King (“it is, it is, a glorious thing to be a pirate king”), congratulates him and tells him that he now ranks as a “full blown member of our band”, producing a cheer from the crew, who are then told “My friends, I thank you all from my heart for your kindly wishes. Would that I can repay them as they deserve.” Asked what he means by that, Frederic explains “Today I am out of my indentures, and today I leave you forever.” Astonished, since Frederic is the best man he has, the Pirate King asks for an explanation. Frederic, with Ruth’s help – for she had also joined the pirate crew – explains about the error, and that while as long as the terms of his indentures lasted it was his duty to serve as part of the pirate crew, once they were over “I shall feel myself bound to devote myself heart and soul to your extermination!”
In the course of explaining all of this, Frederic expresses his opinion of his pirate colleagues in these words “Individually, I love you all with affection unspeakable, but, collectively, I look upon you with a disgust that amounts to absolute detestation!”
As tempting as it is to continue this summary until we get to the “doctor of divinity who resides in this vicinity” and Major-General Stanley who, as he likes to introduce himself, is the “very model of a modern Major-General”, I have already arrived at the lines that are the entire point of my having brought all of this up.
I have stated many times in the past that I prefer to call myself a Canadian patriot rather than a Canadian nationalist. There are two ways in which patriotism and nationalism are usually distinguished. The first is a distinction of kind. Patriotism is an affection that people come by naturally as they extend the sentiment that under ordinary circumstances they acquire for the home and neighbourhood they grew up in to include their entire country. Nationalism is an ideology which people obtain through indoctrination. The second is a distinction of object. The object of nationalism is a people, the object of patriotism is a country. I have talked about the first distinction in the past, it is the second which is relevant in this essay. I love my country, the Dominion of Canada, and its history, institutions and traditions. When it comes to my countrymen, however, Canadians, and to be clear, I mean only those who are living at the present moment and not past generations, I often find myself sharing Frederic’s sentiments which were again:
Individually, I love you all with affection unspeakable, but, collectively, I look upon you with a disgust that amounts to absolute detestation!
The more my fellow Canadians show a lack of appreciation for and indifference towards Canada’s traditions and institutions the more inclined I am to think of them, taken collectively, in such uncharitable terms. If opinion polls are any real indication – and to be fair, I do not think that protasis to be certain, far from it – this lack of appreciation and indifference has been very much on the rise among Canadians as of late.
Take personal freedom or liberty, for example. This is a vital Canadian tradition. It goes back, not just the founding of the country in Confederation in 1867, but much further for the Fathers of Confederation, English and French, in adopting the Westminster constitution for our own deliberately chose to retain continuity with a tradition that safeguarded liberty. Sir John A. Macdonald, addressing the legislature of the United Province of Canada in 1865 said:
We will enjoy here that which is the great test of constitutional freedom – we will have the rights of the minority respected. In all countries the rights of the majority take care of themselves, but it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot, or of an unbridled democracy, that the rights of minorities are regarded.
Sir Richard Cartwright made similar remarks and said “For myself, sir, I own frankly I prefer British liberty to American equality”. This sentence encapsulated the thinking of the Fathers of Confederation – Canada was to be a British country with British freedom rather than an American country with American equality. In the century and a half (with change) since then, this has been reversed in the thinking of a great many Canadians. In the minds of these Canadians “equality” has become a Canadian value, although not the equality that Sir Richard Cartwright identified with the United States but a much uglier doctrine with the same name, and freedom has become an “American” value. The Liberal Party and their allies in the media and academe are largely if not entirely to blame for this. Indeed, this way of thinking was evident among bureaucrats and other career government officials who tend to be Liberal Party apparatchiks regardless of which party is in government long before it became evident among the general public.
About fourteen years ago, in the Warman v. Lemire case before the Canadian Human Rights Tribunal, Dean Steacy, an investigator with the Canadian Human Rights Commission, was asked “What value do you give freedom of speech when you investigate?” His response was to say “Freedom of speech is an American concept, so I don’t give it any value.” This despite the fact that in the 1982 Charter of Rights and Freedoms, which people like this usually although contrafactually regard as the source of constitutionally protected rights and freedoms in Canada, “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” is the second of the “fundamental freedoms” enumerated in Section 2. Perhaps Steacy did not think “speech” to be included in “expression”.
When Steacy’s foolish remark was publicized it did not win him much popularity among Canadians. Quite the contrary, it strengthened the grassroots movement that was demanding the repeal of Section 13 of the Canadian Human Rights Act, a movement that was ultimately successful during the premiership of Stephen Harper by means of a private member’s bill despite it lacking the support of the Prime Minister and even, as many of us thought at the time, with his tacit disapproval. This demonstrates that as recently as a decade and a half ago, Dean Steacy’s knee-jerk rejection of Canada’s traditional British liberty as “American” did not resonate with Canadians. Can the same be said today?
The last year has provided us with many reasons to doubt this. In March of 2020, after the media irresponsibly induced a panic over the spread of the Wuhan bat flu, most provincial governments, strongly encouraged to do so by the Dominion government, followed the example of governments around the world and imposed an unprecedented universal quarantine, at the time recommended by the World Health Organization, as an experiment in slowing the spread of the virus. This involved a radical and severe curtailing of our basic rights and freedoms. Indeed, the freedoms described as “fundamental” in the second section of the Charter – these include, in addition to the one quoted two paragraphs ago, the freedoms of “conscience and religion”, “peaceful assembly” and “association” – were essentially suspended in their entirety as our governments forbade all in-person social interaction. Initially, as our governments handed over dictatorial powers to the public health officers we were told that this was a short-term measure to “flatten the curve”, to prevent the hospitals from being swamped while we learned more about this new virus and prepared for it. As several of us predicted at the time would happen, “mission creep” quickly set in and the newly empowered health officials became determined to keep these excessive rules and restrictions in place until some increasingly distant goal – the development of a vaccine, the vaccination of the population, the elimination of the virus – was achieved. Apart from a partial relaxation of the rules over the summer months, the lockdown experiment has remained in place to this day, and indeed, when full lockdown measures were re-imposed in the fall, they were even more severe than they had been last March and April. This despite the fact that the evidence is clearly against the lockdown experiment – the virus is less dangerous than was originally thought (and even last March we knew that it posed a serious threat mostly to those who were very old and already had other health complications), its spread rises and falls seasonally similar to the cold and flu, lockdowns and masks have minimal-to-zero effect on this because it has happened more-or-less the same in all jurisdictions regardless of whether they locked down or not or the severity of the lockdown, while lockdowns themselves inflict severe mental, physical, social, cultural and economic damage upon societies.
Polls last year regularly showed a majority – often a large majority – of Canadians in favour of these restrictions and lockdowns, or even wishing for them to be more severe than they actually were. If these polls were at all accurate – again, this is a big if – then this means far fewer Canadians today respect and value their traditional freedoms than has ever been the case in the past, even as recently as a decade ago. It means that far too many Canadians have bought the lie of the public health officers, politicians, and media commentators that valuing freedom is “selfish”, when, in reality, supporting restrictions, masks, and lockdowns means preferring that the government take away the rights and freedoms of all your neighbours over you taking responsibility for your own safety and those of your loved ones and exercising reasonable precautions. It means that far too many Canadians now value “safety” – which from the Reign of Terror in the French Revolution to this day has ever been the excuse totalitarians of every stripe, Communist, woke, whatever, have used to tyrannize people and take away their freedoms – over freedom.
Over the past week or so, the mainstream media have been reporting opinion poll results that seem to indicate that a similar lack of appreciation for an essential Canadian institution is growing. According to the media the poll shows that support for replacing our hereditary royal monarch with an elected head of state is higher than it has ever been before, although it is not near as high as the lockdown support discussed above and is still below having majority support. There is good reason to doubt the accuracy of such poll results in that they indicate growing support for a change the media itself seems to be trying to promote given the way it has used the scandal surrounding the recent vice-regal resignation to attack the office of the Queen’s representative, the Governor General, when the problem is obviously with the person who filled the office, and the way in which she was chosen, i.e., hand-picked by Captain Airhead in total disregard of the qualities the office calls for, selection procedures that worked well in the past such as with Payette’s immediate predecessor, or even the most basic vetting. There is also, of course, a question over whether these poll results indicate an actual growth in small-r republican preferences or merely disapproval of the next in line of succession, His Royal Highness Prince Charles.
To the extent that this poll is accurate, however, it indicates that many Canadians have traded the Canadian way of thinking for the American way of thinking. Americans think of the Westminster system as being inferior to their own republican constitution because they consider it to be less than democratic with a hereditary monarch as the head of state. The historic and traditional Canadian perspective is that the Westminster system is superior to a republican constitution because it is more than democratic, incorporating the monarchical principle along with the democratic. To trade the Canadian for the American perspective on this is to impoverish our thinking. That a constitution is better for including more than just democracy is a viewpoint with an ancient pedigree that can be traced back to ancient Greece. That democracy is the highest principle of government and that a constitution is therefore weaker for having a non-elected head of state is an entirely Modern perspective. It cannot even be traced back to ancient Rome, for while the Roman republic was like the American republic in being kingless, it was unlike the American republic in that it was openly and unabashedly aristocratic and made not the slightest pretense of being democratic. Some might consider an entirely Modern perspective to be superior to one with an ancient pedigree, but such are ludicrously wrong. Novelty is not a quality of truth – the truer an idea is, the more like it is that you will be able to find it throughout history, stretching back to the most ancient times, rather than merely in the present day.
Indeed, to think that an elected head of state is preferable to a hereditary monarch at this point in time, that is to say after the clownish mayhem of the fiascos that were the last two American presidential elections, is to embrace the Modern perspective at the worst possible moment, the moment in which it has been utterly discredited. It is bad enough that Canadians have lately allowed the American presidential election style to influence the way we regard our parliamentary elections so as to make the question of which personality cult leader we want as Prime Minister into the primary or even sole factor to be considered in voting for whom we want for our local constituency representative. We do not need to Americanize the office of head of state as well.
We are better off for having a hereditary royal monarch as our head of state and a constitution that is therefore more than, not less than, democratic. Historically and traditionally, the institution of the monarchy has been the symbol and safeguard of our traditional rights and freedoms. I have long said that in Canada the monarchy and freedom stand and fall together. Therefore, if the polls are correct about waning Canadian support for both, this speaks very poorly about the present generation of Canadians. Which is why if these trends continue, Canadians who still love their country with its traditional monarchy and freedoms will be increasingly tempted to individually love their countrymen with affection unspeakable, but collectively look upon them with a disgust that amounts to absolute detestation.
Preston Manning: Lockdown rules are violating our rights. I’m calling on the justice minister to intervene
Author of the article:Preston Manning, Special to National PostPublishing date:Jan 26, 2021 • 20 hours ago • 7 minute read
The following is an edited excerpt from a letter sent by Preston Manning, former leader of the Reform party and former leader of the official Opposition in Parliament, to Justice Minister and Attorney General David Lametti.
The primary purpose of this letter is to request action on the part of yourself and the House of Commons’ standing committee on justice and human rights to achieve a better and more equitable balance between: the protection of the health of Canadians through government measures adopted in response to the COVID-19 crisis and the protection of the rights and freedoms of Canadians as guaranteed by the Canadian Charter of Rights and Freedoms.
One of the unfortunate and presumably unintended consequences of the health protection measures has been the widespread and prolonged infringement of “fundamental rights” that are guaranteed by the charter:
Regrettably, it must also be emphasized that these violations have been occurring for more than 10 months and in large and ever-increasing numbers throughout the country. Moreover, in addition to these violations of “fundamental freedoms,” other important rights and freedoms guaranteed by the charter are also being infringed, including widespread violations of democratic rights, mobility rights, legal rights, equality rights and the right of every citizen and permanent resident to “pursue the gaining of a livelihood.”
The denial of the right to pursue the gaining of a livelihood, which includes the right to work and operate a business, is particularly devastating, as it affects the social, economic and financial well-being of millions of Canadians.
While health under our Constitution is primarily a provincial responsibility, given the federal role in responding to COVID-19 and in bringing the charter into being, surely it is the federal government that ought to take the lead in balancing our COVID response with the rights and freedoms that are enumerated in the charter.
I acknowledge that Section 1 of the charter does permit governments to impose limits on the rights and freedoms of Canadians, so long as those limits can be “demonstrably justified” as “reasonable” in a free and democratic society. But in order for these measures to be seen as legitimate, the government has an obligation to provide Parliament, and the public, with evidence that it has done its due diligence and taken into account all the scientific evidence, including the views of those who disagree with the government’s assumptions.
For example, if the governmental response includes continued lockdowns, a demonstrable and reasonable justification would require the government to present a clearly written plan. Such a plan should:
show exactly why such extraordinary measures are required;
identify the nature and magnitude of the anticipated impacts of such measures;
propose concrete measures for mitigating the known collateral damage that such lockdowns produce; and
specify when these supposedly “temporary” measures will end, and on what basis (to say that lockdown measures will be lifted when the number of “cases” is “low enough” is not a satisfactory criterion and only generates massive uncertainty among workers, employers and investors).
The charter provides for the protection of the rights and freedoms of Canadians by declaring that: “Anyone whose rights or freedoms, as guaranteed by this charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” The Constitution also empowers courts to declare that “any law that is inconsistent with the provisions of the Constitution is to the extent of the inconsistency, of no force or effect.”
However, I would suggest that these provisions are insufficient under the circumstances, given that the process of applying to the courts for relief is unfamiliar to, and beyond the means of, most Canadians. Since not all Canadians have the resources or the expertise to avail themselves of this right of appeal to the courts, inequality of access becomes a further limitation on the ability of Canadians to exercise this right.
Furthermore, if all the Canadians whose rights have been infringed over the last year were to apply to the courts for redress, it would overwhelm the court system. Even in the event of such a flood of applications, the courts are likely to view the health protection issue, particularly in an emergency, to be a policy matter to be dealt with by Parliament, not the judiciary.
As a lifelong democrat and a former parliamentarian, I completely agree that the balancing of conflicting rights is first and foremost the responsibility of the duly elected Parliament, with appeals to the courts being a measure of last resort. After all, Canada’s current Constitution was drafted and made law by elected representatives of the people, not appointed judges, so it is elected officials and those reporting to them (civil servants) who have the primary responsibility for protecting the rights and freedoms it guarantees and balancing that protection with other demands.
This leads me to a third request, namely that you and your parliamentary colleagues implement other measures that could be undertaken by Parliament, cabinet and the civil service to correct the current imbalance between the necessary protection of the health of Canadians and the equally necessary protection of their constitutionally guaranteed rights and freedoms.
These additional measures are required because what might have been confined to a health crisis has unfortunately been turned into a social crisis, an economic crisis, a pending financial crisis and a crisis for children, university and college students, and high-performance athletes — three cohorts of Canadians who are least vulnerable to the coronavirus and who ought to have been the least affected by efforts to limit its spread.
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Allow me to suggest five such measures:
Public recognition by the prime minister and the government that the COVID-19 crisis has become a multi-dimensional public emergency that requires the government to broaden its management beyond the health department and the advice of the medical community to include a broader range of scientific expertise and the meaningful involvement of other federal agencies with experience and expertise in managing public emergencies.
The convening of special sessions of Parliament, until the COVID crisis has passed, in which each member will be given an opportunity to give a short report on the health situation in his or her constituency, the positive and negative impacts of the health-protection measures adopted and suggestions for securing a more balanced and effective response.
Ordering the Department of Justice to conduct comprehensive assessments of the impacts of health-protection measures on the rights and freedoms of Canadians; to openly and transparently present the results of such assessments to Parliament; to put forward proposals for balancing health protections with the protection of rights and freedoms; and to adopt and implement those balancing measures that receive majority support in Parliament.
Action by the ministers of finance, economic development and natural resources to introduce legislation requiring economic impact assessments to be performed on every major health and environmental protection measure proposed or adopted by the federal government.
The employment of due diligence in the development and implementation of these and whatever further measures are required to effectively balance the protection of the health of Canadians with the protection of their rights and freedoms.
Let me make crystal clear that I fully recognize that the coronavirus is a serious threat to the health and well-being of Canadians that requires substantive governmental action. I myself, due to age and a family predisposition to lung-related illnesses, am personally in a very vulnerable group.
But in the interests of all Canadians, I respectfully ask for your active support in achieving an equitable balance between the protection of the health of Canadians and the protection of their fundamental rights and freedoms under the Constitution, and an equitable balance between the physical well-being of Canadians and their social, economic and financial well-being.
As I have said many times in the past, I am not an admirer of the
Charter of Rights and Freedoms. This is not because I disagree with
the “fundamental freedoms” listed in Section 2 or the basic legal and
civil rights listed in Sections 7 to 13. All of these rights and
freedoms, which are by far the most important rights and freedoms in the
entire document, Canadians already possessed as subjects of Her Majesty
under Common Law before 1982. The reason I dislike the Charter is
because the Charter, rather than making these rights and freedoms more
secure, as the Liberals who drafted it want you to believe, made them
less secure. It includes two extremely broad loopholes.
The clause “subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society” found in
Section 1 is the first of these. Who says what limits are “reasonable”
and who decides whether they are “demonstrably justified in a free and
democratic society?” The government that seeks to place limits on
these rights and freedoms cannot be trusted to make this decision
The second loophole is Section 33, the Exception Section with its
notorious “notwithstanding clause”. This section allows the Dominion
and provincial governments to pass Acts which will operate
“notwithstanding a provision included in section 2 or sections 7 to 15
of this Charter”, i.e., the sections about our fundamental freedoms and
basic legal rights. Although such Acts are required to sunset in five
years (subsection 3) they can be renewed (subsection 4). This second
loophole is the reason former Prime Minister Brian Mulroney said, and he
was right to say it, that the “Charter is not worth the paper it’s
This is not the only problem with the Charter.
Section 7 reads “Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice”, substituting
“security of the person” for “property” which is the third of the basic
rights under Common Law, in which the security of person and property is
the concise way of stating all three basic rights. Property is
nowhere mentioned in the Charter. This has long been criticized as one
of the chief failings of this document and has been thought to reflect
the Marxist inclinations of those who have led the Liberal Party,
arguably since Lester Pearson became leader in 1958, but especially
since Pierre Trudeau took over in 1968.
Subsection 2 of Section 4 allows a Dominion or provincial government
with a large enough backing in the House of Commons or the provincial
legislature – a supermajority of two-thirds – to suspend elections
indefinitely in a time of “real or apprehended, war, invasion or
insurrection.” Note the words “or apprehended.” The threat of war,
invasion or insurrection does not have to be real. Pray that neither
the Liberals nor any other party, ever obtain enough seats in Parliament
to put this subsection into effect.
Subsection 2 of Section 15 nullifies what subsection 1 says about how
every individual is “equal before and under the law and has the right to
the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or
I am not particularly keen on the wording of subsection 1 either.
Saying that everyone has a right to “equal protection and equal benefit
of the law without discrimination” can be interpreted in two ways. It
can be interpreted as binding the State, preventing it from practicing
said discrimination in its administration of the law and justice. I
would not have a problem with that interpretation. It can also be
interpreted as empowering the State to interfere in our everyday
interactions to make sure we aren’t discriminating against each other.
I have a huge problem with that – it is a form of totalitarian thought
Consider the Canadian Human Rights Act which was passed five years prior
to the Charter. Although the expression “human rights” is thought by
most people to mean rights which all human beings possess by virtue of
their humanity and which only bad governments violate, and the phrase
“human rights violation” is ordinarily understood to refer to
governments incarcerating people for indefinite periods without a trial,
torturing them, murdering them, and the like, this Act places limits on
individuals not the State, which it empowers to police the thoughts and
motivations of Canadians in their private interactions with each other.
The second subsection of Section 15 states that the first subsection
“does not preclude any law, program or activity that has as its object
the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or
ethnic origin, colour, religion, sex, age or mental or physical
disability.” In other words, the State is allowed to practice
discrimination on the basis of race, rational or ethnic origin, colour,
religion, etc., if that discrimination is the type sometimes called
reverse discrimination, that is to say, discrimination against white
people, especially those of British and French stock, Christians, males,
Section 15 as a whole, then, appears to authorize the State to interfere
in our private affairs to prevent us from discriminating against each
other, while allowing the State to practice a form of discrimination
Other flaws in the Charter itself could be pointed out but those that I
have mentioned here are by far the worst. Worse, in my view, than any
actual flaw in the Charter, however, is the attitude towards the Charter
and the set of false notions about it that the Liberal Party has
encouraged us to hold ever since 1982. There are many, for example,
who refer to the Charter as if it were our constitution and claim that
Pierre Trudeau gave us our constitution. This is not a claim the
Charter makes for itself and it is no such thing. The Charter has been
a part of our constitution since 1982, but it is not the
constitution itself. Indeed, even the British North America Act of
1867, which was renamed the Constitution Act, 1867 during the
repatriation process which gave us the Charter but remains in effect, is
not the whole of our constitution. Most of our constitution is in
fact, unwritten, or, to put it another way, written in prescription and
tradition rather than paper and ink. As our greatest constitution
expert, the late Eugene Forsey used to say to those who made the absurd
claim that Pierre Trudeau had given us our constitution, we still have
the constitution we had in 1867, albeit with a new name, and bells and
Even more common is the strange notion that the Charter itself gave us
our rights and freedoms. Admirers of the Charter tend to view it this
way. Some critics, such as William Gairdner (The Trouble With Canada, 1990) and Kenneth McDonald (The Monstrous Trick, 1998, Alexis in Charterland,
2004) have argued that the Charter is an example of continental-style
charter law, like the Napoleonic Code, intended to replace our Common
Law system of rights and freedoms. The reality is more nuanced than
that. Before explaining the nuance and what really happened, we need
to understand the difference between the two systems and why this would
indeed be a “monstrous trick” if it were in fact true.
Under continental-style charter law, everything is imposed from the top
down, from the law itself, to the rights and freedoms that exist under
it. Therefore, under this kind of law, you only have the specific
rights and freedoms that are spelled out on paper in black and white.
The question, under this system of law, is whether or not I have
permission to do something.
Under Common Law, the law is not imposed from the top down, except in
the sense of the underlying natural law being laid down by God, and even
then this raises the much-debated theological question of whether God’s
law and justice are expressions of His character or of His will.
Don’t worry. I will not attempt to answer that question here as it is
quite extraneous to this discussion. The Common Law is not imposed by
the State. Although the Sovereign authority, the Queen-in-Parliament,
has the power to add to, subtract from, and otherwise alter the Law, the
Law is not the creation of the Sovereign authority. The law arises
out of natural law and justice, through a process of discovery in the
courts, where disputes are brought to be arbitrated on the basis of
fairly hearing all the evidence on both sides. Rights and freedoms,
under Common Law, are not limited to those that are spelled out in black
and white. The question, under this system of law, is whether or not I
am prohibited to do something. If not, I am free to do it.
The Charter of Freedoms does not actually replace Common Law with
continental-style charter law. It merely creates the impression of
having done so. The Charter does not identify itself as the source of
our rights and freedoms, nor does it say that we have only those rights
and freedoms it spells out. Indeed, it states the very opposite of
this. Remember that the addition of the Charter was part of a
constitutional repatriation process that required adopting an amendment
formula and which required the participation of the provincial
governments. Nine out of ten of the provinces are fully Common Law,
and it is the exception, which under the provisions of the Quebec Act of
1774 has a hybrid of Common Law criminal law and French civil law,
which dissented from the final product. The Liberals would never have
been able to get away with substituting continental law for Common Law
in this context in 1982. They, quite in keeping with their modus
operandi of never telling the truth when a lie will suffice, settled for
creating the impression that they had done so. Their totalitarian ends
would be met, as long as Canadians started to think in terms of “am I
permitted” rather than “is it prohibited.”
This is why the most important section in the Charter of Rights and Freedoms is Section 26. Here it is in full:
The guarantee in this Charter of certain rights and freedoms shall
not be construed as denying the existence of any other rights or
freedoms that exist in Canada.
This is the Charter’s acknowledgement, tucked away in the miscellaneous
category towards the end rather than being placed in the very first
section as it ought to have been, that the Charter did not take us out
from under Common Law and cause all of our Common Law rights and
freedoms to disappear.
To illustrate what this means in application to a current hot topic, the
Supreme Court of Canada was entirely in the wrong when it said as part
of its ruling in R v Hasselwander
in 1993, that Canadians have no constitutional right to own guns. The
passing of the Charter, by its own admission in Section 26, did not
cancel our right, as subjects of Her Majesty, to have arms for our
defence, such as are allowed by law. This is a Common Law right, the
fifth right that Sir William Blackstone in the first volume of his Commentary on the Laws of England
(1765) identified as a necessary auxiliary to the basic and absolute
rights of life, liberty, and property, and which had been put into
statute in the Bill of Rights of 1689. This does not mean that
the Supreme Court of Canada was necessarily wrong in its ruling on this
case which involved the confiscation of a Mini-Uzi sub-machine gun. It
does mean, however, that it erred in saying that Canadians had no
constitutional gun rights. This was in response to the defence’s own
mistake of trying to argue based upon American law, but what they should
have said was that Canadians’ Common Law right to own guns is not
absolute, but is subject to the qualification “as are allowed by law.”